June 14, 2008

[T]he prospect of using the decision as a rallying point seemed to occur to many conservatives simultaneously. The ruling has “teed up the Supreme Court issue nicely for the G.O.P.,” Curt Levey of the Committee for Justice, a group that advocates for Republican judicial nominees, wrote on his blog. The Wall Street Journal’s editorial page quoted Justice Robert H. Jackson’s famous observation that the Constitution is not a suicide pact and added, with reference to the author of Thursday’s majority opinion, “About Anthony Kennedy’s Constitution, we’re not so sure.”

On the other end of the spectrum, liberals warned that the vision of civil liberties embraced by the court’s narrow majority — security requires “fidelity to freedom’s first principles,” Justice Kennedy wrote — was hanging by a thread. “One more Bush justice on the court and the decision would likely have gone the other way,” said Kathryn Kolbert, president of People for the American Way. Senator Barack Obama, the presumed Democratic nominee, praised the decision as “an important step toward re-establishing our credibility as a nation committed to the rule of law.”

Freedom requires that the Supreme Court not run the Executive branch, which ought to be the response, along with Bush refusing to go along.

RH, I think you were too limited. As I understand it, in a couple of previous cases, the SCOTUS gave the Adminstration and Congress a road map for what needed to be done to provide a legal framework for holding detainees.

The Adminstration and Congress passed and signed into law a process. It was this process that was overturned by the SCOTUS in this decision, ignoring the both English and US legal history. Further the SCOTUS provided no real guidance for either lower courts or the other 2 branches on what needed to be done. Just an expansion of Judical powers and a spanking of the other 2 branches.

You bet it is. This is Willie Horton II. Prison furloughs is poor judgement, so is court oversight of foreign detainees. KSM could be set free at the whim of a judge? The first thing KSM asked for when taken into custody, a lawyer. Good thing we had President Bush, the waterboard awaited him.

The Supreme Court was already a big campaign issue, at least among people who actually give some serious thought to law and politics. While it's cute to say (as one person did in the NY Times article) that only about 500 lawyers on the left and 500 lawyers on the right care about this sort of thing, a cursory view at any conservative or liberal blog, or for that matter any conversation with political activists of either party, will show that a lot more people care about the Supreme Court than a handful of lawyers. I'd go so far as to say that caring about the courts (regardless of where you want them to go)is basically a requirement for entry among people who have some measure of political seriousness.

Also, I disagree with the argument that the Court hasn't been an important issue for most recent election cycles. It certainly was in 2004, in which the specter of activist judges creating a right to gay marriage was used to galvanize support for anti-gay marriage referenda around the country, and to help get the social conservative base out to vote.

It's a decision that, like Kelo, will not endure Justice Stevens' retirement, let alone for the ages, unless Obama should eek out a win. That would naturally make it a campaign issue, but not so much, I suspect, as the forthcoming evisceration of the Second Amendment.

Donny O. said..."And don't forget a big shout out to Roberts ... for living up to his promise of bringing the court together and avoiding split decisions. ¶ He failed miserably on this important issue."

Roberts said that it was a goal to produce narrower rulings with stronger majorities. He never "promised" to do so, and he certainly never promised or even aimed at unaminity, which is what you hint was his "promise." It would have been foolhardy to promise either - the Chief has no power to force that result. He can only try to persuade. Correctly understood, I think it's clear that he has done quite well with his goal; as this term has worn on, it has become apparent that last term was the outlier. This term, decisions that might have been 5-4 five years ago have come out as a somewhat more narrowly-written decision with 6-3 majorities, and there have been almost none of the sort of splintered trainwreck decisions you saw in McConnell. The only one that even jumps to mind this term is Baze.

rhhardin said..."Freedom requires that the Supreme Court not run the Executive branch, which ought to be the response, along with Bush refusing to go along."

Can't be done. The day that the public shrugs when executive branch starts picking and choosing which decisions it obeys, the rule of law lays its neck on the chopping block. Mr. Kennedy has made his decision; now let the President enforce it.

Can't be done. The day that the public shrugs when executive branch starts picking and choosing which decisions it obeys, the rule of law lays its neck on the chopping block. Mr. Kennedy has made his decision; now let the President enforce it.

The voters decide, for it is Congress that can remove the President.

So it comes down to explaining it to voters. And that comes down to explaining it.

The observed that as the Crisis approaches, having a majority of justices born before 1944 will ultimately deepen the Crisis because the Silent Generation's preoccupation with "process" and "justice" will repeatedly place important procedural barriers in the way of getting done what needs doing.

Every justice in the majority was born prior to 1944, but only one in the minority (Scalia). Extending 1960s-era Warren Court attitudes towards criminals to international terrorists most decidedly fits the pattern.

Rhhardin - what I mean is that once the court has decided, the administration cannot simply decide to disobey, which was the upshot of your comment, as I understood it. That's something that voters can't change, at least in a direct sense. The government can only operate within the boundaries of the Constitution, and it is and always has been the province and duty of the courts to say where those boundaries lie. Andrew Jackson was on safe ground when he vetoed the Bank of the United States, but not when he ignored Worcester v. Georgia (hence the allusion to his reply in my comment above).

Sarge - I suppose the best way to deal with the issue is simply to release them from Guantanamo. And then do nothing. They aren't allowed back into the camp. they aren't allowed to cross into Cuba. We aren't going to provide them with transportation, and we're not going to allow anyone in to transport them out. Their options are to sit or swim.

The decision reminds me of Democrats support for the requirement for the president to get a warrant if he wants to listen to Terrorists in Afghanistan call the U.S. It is totally idiotic. No wonder Obama supports it.

Worse yet, I just read that Obama slammed private retirement accounts for social security and then proposed them in the same speech. With Russert gone, there is no one left in the media to call Obama on this stuff.

what I mean is that once the court has decided, the administration cannot simply decide to disobey, which was the upshot of your comment, as I understood it. That's something that voters can't change, at least in a direct sense.

The administration can always take the line that it's not within the Court's powers to say.

If that's obviously wrong, Congress can impeach and remove the President.

If it's not obviously wrong, it limits the Court's intrusions on the other branches of government.

Based on what Congress does, the voters can throw them out, even though they can't get at the judges directly.

Bart, I think that "crisis" is a word that has become almost entirely denatured by its repeated use in hyperbolic complaints to denote that the speaker cannot obtain their desired result because of some obstacle. For example, Marc Ambinder recently referred to the possibility that his preferred Presidential candidate might win more popular votes yet still lose the Presidency as a "Constitutional crisis." So what supposed "crisis" are we moving towards? As I understand their Wikipedia entry (perhaps their books make short work of the following point), even Strauss & Howe make no claims to know. They merely postulate, based on their own claim that history is cyclical, that if there have previously been crises, then logically we must be approaching one now.

This is not especially convincing, and even less so when applied: you write that they "observed that as the Crisis approaches, ... the Silent Generation's preoccupation with 'process' and 'justice' will repeatedly place important procedural barriers in the way of getting done what needs doing." I would suggest that it is the Constitution itself that is "preoccup[ied]" with process, and that the placing of "procedural barriers in the way of getting done what needs doing" - or rather, in the way of what Government would like to do - is the primary office of the Constitution. The Constitution was not designed to keep us safe from Al Queda - it was designed to keep us safe from ambitious men from our own ranks, men who (as Daniel Webster well-put it) mean to rule well - but mean to rule.

Did the Boumediene case make the Supreme Court a big campaign issue overnight?

No, unless one or both of the following two things happen:

1. A direct link is established betweem terrorists freed on their "precious US citizens rights" - magically acquired by seeking to kill Americans - get out and kill more Americans. With the Willie Horton link and looming threat of more Hortons on the loose clearly established as true in voters minds, and Dems as unrepentitent about it as Dukakis was.

2. The same 5-4 majority then goes on to eviscerate the 2nd Amendment, to leftist Democrat applause. Something creative that pays lip service to it being a right of more than just armed government agents...but the establishes the right of municipalities and states, as with private property - to establish the rules, possession zoning, possession restrictions, and high per firearm special taxes. All of which the Court will assure - like with private property and needed to best balance the "right" for optimum enjoyment by people that are guided by the wise hands...at DC City Council....for example.

******************The case also erodes Executive and Congressional authority as "co-equal" to the Courts - further taking our Judiciary in the new direction it has taken as being more Talmudic than English law, and aserting that the Lawyer-Priests of the New Sanhedrin are the final word for all conduct by the People or the two, formerly co-equal branches.Even when the other two Branches take insructions on what they must amend to be Constitutional, the Lawyer-Priests can still say they were just kidding on what fixes the Executive and Legislative needed to do to satisfy the Court's former whims, and new whims can always arise as they feel like it.

This is absurd. I'm going to hold my nose, vote for McCain and pray to God that when a new Justice needs to fill the spot that he will make the right decision. I just can't believe sometimes that I still call this country The United States of America anymore with decisions like this. Yes, I'm emotional.

I am of a couple minds with this case. Historically, I don't see the majority having that much support, since originally the Writ stopped at the ocean shore. These were non-citizens caught during war time on foreign soil (illegally) fighting us and never really brought to U.S. soil. On the other hand, the majority pointed out that the solution was to utilize the "Suspension" Clause.

But what is worrisome is that the Judiciary is imposing itself in the area of strongest Presidential power - that of conducting war overseas. Why should terrorists illegally (according to the Geneva Conventions) fighting against us in foreign countries be provided the same right here as our ancestors had to fight for?

Bruce Hayden said..."These were non-citizens caught during war time on foreign soil (illegally) fighting us and never really brought to U.S. soil. On the other hand, the majority pointed out that the solution was to utilize the 'Suspension' Clause."

But if the writ doesn't run to Guantanamo in the first place, the suspension vel non of the writ is irrelevant, and even if it were otherwise, the point is made by both the majority and the dissent, (IIRC) that the suspension clause wouldn't cover Guantanamo.

As I wrote here, Obama could, if he was smart, win the election on this issue alone. All he has to do is say that if he is elected he will ignore this decision, and treat prisoners in accord with the procedures enacted by Congress. This way he would make the Supreme Court the main issue in the campaign, and put Obama in the position of defending constitutional rights for Osama Bin Laden and hs lawyers.